Education and Adoption Bill

Baroness Massey of Darwen Excerpts

Thursday 5th November 2015 Grand Committee

[Lord Watson of Invergowrie (Lab)]

My Lords, I rise to address the first group of amendments on the Marshalled List. In moving Amendment 1, I shall speak also to Amendments 2, 7 and 9 and make reference to Amendment 5 in the name of the noble Lord, Lord Addington.

Amendments 1 and 2 would replace the term “coasting schools” with “schools in which pupils do not fulfil their potential”. We believe that that is essential, because coasting can be, and often is, seen as a pejorative term. There can be many reasons why pupils are not fulfilling their potential and it is wrong to start from a presumption that this is the result of a lack of effort on the part of the school. Currently the Bill provides for the definition of coasting to be set out in regulations. The draft is based entirely on performance data, a combination of pupil attendance data and pupil progress data. It allows for no other factors to be considered, but I am hopeful that that might change after the consultation.

At Second Reading the Minister mentioned—rather casually, it has to be said—that the Government will be launching a public consultation. Of course, that is to be welcomed; but he neglected to mention that the consultation was going to be launched the very next day. I heard about it only a few days later, by chance. It would have been helpful if the Minister had used the opportunity to fully inform all noble Lords, so that we could have been up to speed when the consultation was launched.

From Labour’s point of view, we will be contributing to that consultation, and I am sure that many noble Lords here today will also wish to do so. However, we await the outcome of the consultation, which it is said will be in the spring of next year. It should be drawn to the Committee’s attention that comment on the concept of coasting has already been made by both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee of your Lordships’ House. Both have been clear in their criticism of these aspects of the Bill.

Having considered the fact that the definition of coasting is left to regulations, the Delegated Powers and Regulatory Reform Committee says:

“We consider such a wide and open-ended delegation to be inappropriate given the fundamental importance of the definition to the operation of the new section, and the significant powers which become exercisable in relation to a school once it becomes eligible for intervention”.

The committee goes on to say that it finds the department’s explanation of why the definition is left to regulations unconvincing, and makes a distinction between the criteria and other factors that should apply in determining whether a school is coasting and the detailed data that are used to decide whether the criteria have been met.

The committee argues that if the data are more appropriate for regulations, this does not mean the criteria and other factors should not be included on the face of the Bill. It concluded with a stark warning that,

“there is nothing to prevent regulations being made in the future which completely change the basis for defining what constitutes a coasting school”.

That worry is felt rather more widely than the committee, which is non-partisan. If the Minister was less than happy with that, I imagine that he would have been no more so when he received a letter from the Constitution Committee dated 26 October. That letter pointed out that the committee had previously expressed its concern at the introduction of what it termed “vaguely worded legislation” that leaves much to the discretion of Ministers. The Committee said:

“We wish to put on the record once again our view that Bills should contain an appropriate level of detail and provide a suitable degree of legal certainty”.

I apologise to noble Lords for the extent of those quotes, but I believe that they are important, because the question of how schools are defined is fundamental to the Bill and the manner in which the Government are proposing to act has become the focus for stringent reprimand by two of the most powerful committees in your Lordships’ House.

We welcome statements in the illustrative regulations to the effect that where a coasting school can demonstrate that it can improve sufficiently it should be allowed to do so. This suggests that there may not be a default presumption of academisation—a word I seem to have difficulty in articulating. This point was reinforced by the consultation document. None the less, the judgment is at the discretion of the regional schools commissioner, who will decide on the sponsor where he or she determines that the school should become an academy and can make the decisions with no reference to governors, parents or other stakeholders.

The first two amendments in this group would ensure that the manner in which schools in which pupils do not fulfil their potential are identified and subsequently treated should be no different irrespective of whether they are in the maintained sector or the academy sector. That is why we argue that the provisions of the Act should take precedence over private contracts with academy sponsors. All schools should be treated equally; there should be no place for deals between Ministers and sponsors that are not open to scrutiny. No doubt the Minister will say that issues of confidentiality are involved, but that does not wash, because this is public money that we are talking about—and hefty chunks of it. The public have a right to know how their money is spent, and how both transparency and accountability are to be demanded of those in receipt of those funds.

Amendment 9 states:

“An Academy may be defined as coasting if it falls within the definition made by the Secretary of State by regulations”.

This is one amendment that the Minister must surely find acceptable because it has emerged that an academy can indeed be defined as coasting. This is something else that my team and I have learned by chance, because no announcement that we were aware of was made. It so happens that one of my colleagues came across the latest revision of the model funding agreement, published on 10 September. That document provides for an academy to be designated as a coasting school using the definition which will appear in the legislation when enacted. The wording in the agreement states:

“‘Coasting’ has the meaning given in regulations made under section 60B of the Education and Inspections Act 2006”.

That may not sound important, but it is—although I have to say that, following the Government’s stonewalling on more than 80 amendments in the other place, I believe that we can now claim that this is a government concession. It may not be the way that the Minister sees it, but it is a factor that there has been movement there.

However, if that is the upside, there is a downside to this as well, in that it begs the question as to whether this method is an appropriate use of parliamentary process. Section 60B of the Education and Inspections Act 2006 will not exist in law until and unless the Education and Adoption Act receives Royal Assent. Is it to become the normal practice for DfE officials to publish model legal documents which assume that Parliament will enact legislation before it actually does so? Can the Minister assure the Committee that the reference to Section 60B will now have a health warning attached to it just in case Parliament should decide not to pass the legislation, or if the provision becomes, for the sake of argument, Section 60C or Section 60D or whatever when the Bill eventually receives Royal Assent? As an aside, perhaps the Minister will be able to tell noble Lords when he expects all academies to have this provision inserted into their funding agreements.

It is difficult to avoid the conclusion that the Government’s decision to leave academies outwith the Bill was at least in part designed to avoid some embarrassment to Ministers if those schools do not perform as it had been hoped that they would. If that is the case, it is hardly a sound basis on which to make law. The amendments also place the assessment of whether a school is in this category in the hands of Ofsted. This is to avoid the confusion of having both Ofsted and regional schools commissioners making judgments about a school. It would be entirely possible as the Bill and the regulations are drafted for Ofsted to find a school good or outstanding and the regional schools commissioner to find it coasting and therefore eligible for intervention. That is a recipe for confusion and not a situation that is in anyone’s interest.

Amendment 2 sets out a broader range of criteria to be considered by Ofsted rather than simply relying on performance data. It recognises that there are factors that will affect outcomes that do not relate to how hard the school is working. For example, it is known that pupils from deprived backgrounds on average make slower progress than others. Pupils with special needs often make slower progress than others. Being located in an area where teacher supply is difficult will affect how well pupils do. Data from small schools are much less reliable than those from larger schools. Surely all these factors need to be taken into account when making a judgment about a school. For that reason, Amendment 2 would require Ofsted to consult local authorities and academy sponsors before reaching a decision. It surely makes sense to get the views of those who know a school best and have the ability to explain whether particular circumstances have affected it.

Being designated as a coasting school—or, more accurately, a school in which pupils do not fulfil their potential—should not lead to an academy order. There is one good reason for that. As will arise in discussing various amendments, there is no evidence that academisation leads to greater improvement than remaining in maintained status. The most important factor is to begin the process of bringing about improvement in a school, not concentrating on legal structures.

The Bill rests on the assumption that school improvement can be achieved only by turning a school into a sponsored academy, but there is no evidence that academisation alone improves educational standards. Last year, the National Foundation for Educational Research published research that concluded that the amount of attainment progress made by pupils in sponsored and converted academies is not greater than in maintained schools with similar characteristics.

It is wrong to pursue a one-size-fits-all approach when the evidence that academies are automatically high performing does not stand up to scrutiny and when other options are available. Schools in which pupils are not fulfilling their potential deserve the opportunity to improve without being told that they have no choice in the matter. The same applies to staff, parents and governors. That last issue is for another day; I hope that the Minister will take on board the arguments advanced in support of this group of amendments. I beg to move.

[Baroness Massey of Darwen (Lab)]

My Lords, before I speak to the amendments, I must apologise to the Committee because I have to leave early this afternoon—for a rather strange reason. I live in a small town in East Sussex called Lewes, where there are bonfire celebrations. There are six bonfire societies, six guys, six processions and general mayhem and chaos in the town. The town will therefore be closed down any minute now and I have to get back. I do apologise.

Now to be serious. All of us in this room and in the House generally are concerned about the welfare and education of our children. We are all concerned about having good schools, of whatever type. We are all concerned about pupils reaching their full potential. I want to talk mainly about the issue of coasting, which I would define as not reaching potential, but coasting is the word in the Bill. Much of the Bill is about coasting: who is responsible for the schools, who consults whom, what collaboration takes place, and so on.

First, I thank the Minister for his letter of 21 October, and for calling a meeting the other day which, unfortunately, I could not go to. In the letter, the Minister talks about the Bill making important changes to deliver social justice—I shall come back to that—and to ensure that every child deserves an excellent education. He goes on to say that the Bill provides measures to tackle coasting schools and that illustrative coasting regulations, including a proposed definition of coasting, were published on 30 June. But, to my disappointment, the letter goes no further with defining what we might mean by coasting.

The definition given is fixed on achievement at GCSE. This is a very dangerous definition for schools, teachers and young people, and for school ethos and performance. I will say why, and why I hope that the definition is broadened substantially and put in the Bill, not just in regulations.

We have heard about the Delegated Powers and Regulatory Reform Committee’s criticism of the substance of the Bill being in regulations. This is what happened in the Childcare Bill and it was criticised then. The Government produced regulations that were far longer than the Bill, which is not good enough.

I am surprised that the Minister seems content with a purely academic definition of coasting, because he and I have had several interesting and very valuable conversations about the importance of personal and social skills in education and the importance of school policies which support those skills. Those skills include communication, teamwork, citizenship, knowledge of health matters and school policies about issues such as bullying and behaviour. I believe that the Minister supports all this and I hope he will exercise his influence to redefine with the Department for Education what we mean by a good school where pupils reach their potential.

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[Baroness Perry of Southwark (Con)]

Briefly, I support what the noble Baroness, Lady Morgan, has just said. It is practical common sense. We all know what we mean by a coasting school. At the heart of it, it is one that is simply not getting better; it is just staying where it is. My experience of good schools is that they always want to do better. They will be proud of and pleased with what they are doing, but they will tell you that next year they will do it better and make this or that improvement. The coasting school is one that has just stopped doing that and is sitting there, content with what it is, not brilliant and not below the bar, but not providing that stretching that a good school does for all its pupils.

We should not try to extend the definition, which is a very crucial part of the Bill, to a whole shopping list of all the things that we would like to see in a school. We could write a book on the subject—and many people have—of all the things that we would like to see in a school. My strong feeling is that all schools, by law, have to provide a broad and balanced curriculum and, if they are not doing so, they are failing. If they are not providing all the things that enrich and enhance the experience of their pupils, again, they are not just coasting—they are failing.

[Baroness Massey of Darwen]

Would the noble Baroness not accept that some schools do neglect sport, the arts and social skills? We know this—and that those skills often underpin academic success, so they need to be there. If they are not there, you will not get academic success, either.

[Baroness Perry of Southwark]

Absolutely. That is why we have Ofsted, which picks these things up. It is my firm belief that schools need looking at very regularly. I do not mean that they need a full Ofsted inspection but, as I said at Second Reading, they need somebody to go in to make sure that these things are happening and to make sure that the school then takes action on the deficit that has been identified.

We have a well-defined definition that is workable; it is not complete, and I do not think that the Minister will claim that it is, but it will flag up the need for further action. Let us get it clear at this stage of the Bill—because some of the amendments later seem to cast doubt on it—that nobody is going to force a coasting school immediately into academy status; it is going to be given an opportunity to improve by other means. After the kind of things that we have seen in the press this week, as if all coasting schools were suddenly going to be made academies against their will and without any consultation, let us just kill that myth among ourselves.

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[Baroness Massey of Darwen]

My Lords, I fully appreciate what the Minister says about clarity and transparency, but going back to the point made earlier by the noble Baroness, Lady Howarth, surely a reference to the “broad and balanced curriculum”, which is in an Education Act somewhere, would be helpful. I do not want a list of things that should be tested or referred to, but I would like some reference to the broader curriculum, which supports the academic curriculum. What is this consultation about if the Government are so sure that this is the right definition? I wonder whether the Minister could take that into consideration. I do not want a list; I want a rounded, broad and balanced curriculum.

[Lord Nash]

Of course, Ofsted is focused heavily on a broad and balanced curriculum. As the noble Baroness, Lady Morgan, said, schools that are good at sports, arts et cetera tend to do well on all fronts, but how on earth will teachers know where they are if we have a form of words which could, frankly, mean anything? I shall say a bit more about that in a minute.

The chief executive of the Burnt Mill Academy Trust, who was at the meeting on Monday—a very interesting lady called Helena Mills, who was extremely unsure about the whole academy idea in the early days and is now running a highly successful multi-academy trust and talks glowingly about the advantages—has said that,

“having a coasting definition which is based on performance over time, rather than snapshot judgement is really important”.

The chief executive of Olympus Academy Trust has said that,

“a school’s context should certainly be taken into account when an RSC is deciding whether, and how, to act in a coasting school. But to add factors about a school’s context or judgements about a school’s arts and sports provision into the coasting definition itself would make the definition too complex, subjective and ineffective”.

That is the thrust of our argument.

At a recent meeting of the All-Party Parliamentary Group for Education, Dame Vicki Paterson, the executive head of Brindishe Schools, a federation of three maintained primary schools, also welcomed the notion of coasting. She said that it was positive that the coasting schools definition would take into account school performance over three years and, for primary, be based both on progress and attainment. At the same meeting, a representative from the Association of School and College Leaders reported that her organisation was pleased that the coasting definition would be a separate judgment from those made by Ofsted.

Critically, both Amendment 2 and Amendment 5 would move away from a concentrated focus on those schools where data show that they are failing to fulfil the potential of their pupils. We know that the outcomes reflected in performance data really matter. Our latest results show, as I said, that key stage 2 results are so important.

Of course, other aspects, such as those outlined in these amendments, are important. Ofsted already looks at a wide range of factors in forming its judgments, including how well prepared pupils are for training and employment; the use of the PE and sports premium; and the delivery of a broad and balanced curriculum. But intervention in coasting schools will not be automatic. The draft Schools Causing Concern guidance, which is currently out for consultation, is clear that while data will allow us to determine which schools fall within the coasting definition, RSCs will use Ofsted judgments, as well as a range of other factors, including those referred to in Amendment 2, to help inform their decisions about a school’s capacity to improve sufficiently. We have been clear that that list is not exhaustive, but the guidance already explicitly mentions factors such as the performance of disadvantaged pupils, the gender balance of the school, and pupils with special educational needs.

[Lord Nash]

I assure the noble Baroness that dialogue with Ofsted does take place. I know that at least one regional schools commissioner shares an office with, or is in the same building as, the Ofsted regional schools team. I know that these dialogues take place regularly and I am sure no regional schools commissioner would intervene without talking to Ofsted, so that is something we can consider.

The noble Lord, Lord Watson, made a number of points about the information we have provided and when. We wrote to all Peers to inform them that the consultation on the coasting definition and the Schools Causing Concern guidance had been launched, as well as inviting noble Lords to the meeting on Monday that I have mentioned. I have also replied to the Constitution Committee, explaining my approach to coasting and why the Bill reflects maximum devolution. It is a pity that only one opposition Peer made it to the event on Monday.

The consultation that the noble Lord, Lord Watson, referred to remains open, as he said, until 18 December. We first published illustrative regulations setting out the coasting definition in June, and the Minister for Schools made it clear that the model funding agreement had been amended in the other place; I referred to this at Second Reading. The model funding agreement that the noble Lord referred to has been in operation since September. The noble Lord is correct that this will apply only once this Bill receives Royal Assent but I am sure he will support the fact that we sought to amend the model funding agreement at the earliest possible opportunity and are now being clear with the regional schools commissioners that they will identify and challenge any academy whose performance falls within the coasting definition, whatever the terms of its funding agreement.

I greatly enjoyed listening to the noble Baroness, Lady Massey, and I am interested to hear that she is going to Lewes this evening. I remember there used to be a racecourse at Lewes which was rather oddly shaped. It was just a semicircle; it did not go all the way round. Sadly, I think it is now closed. In my younger days, I had a friend who was a stable lad and he was leading a horse round the ring. It was a National Hunt race and this horse had a hood on its head, which is most unusual in National Hunt, as I am sure the noble Baroness knows, so I asked him why. He said, “Well, it runs very well on the gallops but it does not seem to run very well in races so we concluded that maybe it does not like being around other horses, so we stuff its ears full of cotton wool and hope for the best”. We all got behind it and it won at 20-1 so I hope the noble Baroness has as happy a time this evening as I did then.

[Baroness Massey of Darwen]

I have to tell the noble Lord that the jockeys from that racecourse used to wine and dine at the pub which is now the house I live in.

[Lord Nash]

I knew the noble Baroness and I had a lot in common and now we have even more. As she knows, I agree with just about everything she had to say about what a proper education means, the importance of social skills, et cetera. As I have made clear, we just do not think it is right to put this in the definition, but regional schools commissioners, who are extremely experienced, will take this into account in their analysis. If any noble Lord who was not able to be there on Monday would like to meet any RSCs or any members of the head teacher boards, I would be delighted to set up another conversation about this. The noble Baroness talked about teachers’ stress levels. As I have said, I am genuinely fearful that having an uncertain, vague definition will just add to teachers’ stress levels, and I am sure we are all anxious to avoid that.